Panel 6: the Median Justice

• Citation: Vol. 35 No. 5
• Publication year: 2019

Panel 6: The Median Justice

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PANEL 6: THE MEDIAN JUSTICE

Moderator: Eric Segall

Panelists: Jonathan Adler, Lee Epstein, and Sasha Volokh

Professor Eric Segall: This panel maybe should have been the first panel, I don't know, it was a close call. It was going to be first or last, and I chose last, and it may have been a mistake. This is the panel where we're going to talk about the idea that we've been talking about all afternoon, of Justice Kennedy being "the median Justice" and being the, obviously, most important Justice of the last seventeen years and maybe the last thirty years. Lee Epstein is just a hall of famer when it comes to Supreme Court data and databases and these kinds of issues.

So, I'm going to start by just asking Lee to describe what we mean by the Median Justice, how powerful a median justice Justice Kennedy was, and how valuable is this idea at all?

Professor Lee Epstein: Sure.

Professor Segall: I'm sorry, I did not do the schools, I apologize. Sasha Volokh is from Emory, and Jonathan Adler, who you've met before, is from Case Western, and Lee's teaching at Washington University. I'm sorry.

Professor Epstein: The median Justice is the Justice in the middle of a distribution. The distribution could be anything, could be the number of children they have or their ages or—but usually, when we talk about the median Justice on the Supreme Court, we're referring to ideology. So, the median Justice—the middle Justice—half the Justices are to that Justice's left, more liberal and half to the right, more conservative. I think that's what we typically mean. We could

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talk about a distribution on originalism or other methods, but that's not typically the case.

Professor Segall: And how dominant was he as a median Justice?

Professor Epstein: We did some calculations on this. We went back to 1937 to present, 2017 term. That's eighty-one terms. It turns out during that eighty-one-term period, there were nineteen median Justices, but I would say Justice Kennedy dominated. He was, of the eighty-one terms, he was median Justice eighteen times. Byron White: fifteen times; Sandra Day O'Connor: nine; Reed: six; Clark: six. When we created that list, one question—am I allowed to ask questions, or you are the only one?

Professor Segall: Please. I'd rather retire, so please.

Professor Epstein: Here's a question about that: these are the kind of the super medians, the people who held positions of power for a very long time. It's not a very distinguished list in the sense of—I don't really think of Reed, Clark, even Byron White, I don't think they have much legacies that they've left on the Court. Mike Dorf made an interesting point earlier that when he thinks about legacy, he thinks about it in a historical way. When we think about the period from 2005 to 2017, we think about a period of domination by Justice Kennedy. So, that's one way to think about it.

But another is, Eric, more what you were talking about, is today, what do we think? Have their opinions had enormous effect and they're still around and so on. Maybe being a super median, like a Justice Kennedy, is not a good thing for your legacy.

Professor Segall: You guys want to respond to that?

Professor Jonathan Adler: Well, go ahead.

Professor Sasha Volokh: I think there are many ways that you can be a median. For example, if you're a median because you have wishy-washy views—where you have no philosophy and you split

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the difference between everybody—then you're the median and you determine a lot of decisions. But then, since you had nothing original and distinctive, no one thinks of you as someone distinctive. On the other hand, you could be a median Justice because you really do have something—a distinctive view—which just, by coincidence, happens to be in the middle on some particular issues.

So, I think there's no reason to inherently expect that the set of median Justices is particularly distinguished. Maybe we can compare this with parliamentary politics, where there's going to be some median, small political party that can throw its weight around. Are those median, small political parties the most brilliant politicians, the most statesmen-like, or are they just the ones that happen to be necessary for a coalition? And so, I think there's probably not much that we can say as a matter of principle about whether this should be a distinguished group.

What I found interesting is, you brought this back to the discussion earlier in the day about whose legacy is more enduring. And I think one thing I didn't really like about the earlier discussion was that there was an effort to connect who was more significant with how long it takes for their decisions to be overruled. If you take the simplest-possible political science model where any new majority can just change the decisions of an earlier majority, it's always the median Justice who dominates.

Then, if you have a Justice Kennedy, and if, as soon as he leaves, his decisions keep being around, all that means is that the new median agrees with Justice Kennedy on those issues. And so, in a sense, that makes Justice Kennedy less important—because it means he's less distinctive. He just happens to agree with later median Justices on what the proper rule is. In fact, if Justice Kennedy had a distinctive rule that he was pivotal to, and if immediately that rule is overruled, that actually means that Justice Kennedy was more important—not enduring—but for the time that he was Justice, he

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was absolutely necessary for that rule, and he was the person without whom that rule wouldn't have existed.

So, it's not necessarily true that somebody who is more significant is going to be more enduring. It could go either way, I think.

Professor Epstein: That strikes me as a variation on Mike Dorf s earlier point.

Professor Segall: Let's bring this back to the ground just a little bit. From 2005 until June 30th, or whatever it was, of this year, in virtually every constitutional law, divided, five-four opinion, Justice Kennedy was in the majority. That's a long time. And that transcends affirmative action, abortion, campaign-finance reform, and ten other things. Doesn't that make him unbelievably important, Jonathan?

Professor Adler: Hugely important, and this comes out in Lee's data. Justice Kennedy was in the majority for 83% of the time in his entire career, but if you just look at the period of the Roberts Court, it's in the 90s. With the exception of two terms in the Roberts Court, he was in the majority more than anyone else. The Chief Justice, who you would institutionally expect to be in the majority more than any other Justice just because of his being Chief, twice was one or two percentage points ahead of Kennedy.

What that means is you can't understand this period of the Court without understanding Justice Kennedy. And the other thing that I think that you don't see as much in Lee's data, but I think is important is that while Justice Kennedy was the median Justice, he was not the middle-of-the-road, split-the-difference Justice that arguably Justice O'Connor was at least in a certain set of cases. Justice Kennedy's modal tendency as a Justice was to be a moderate conservative. That is to say, if you were to count by numbers, he was a moderate conservative in more cases than any other.

But in some of the areas we've talked about today, where he really cared about the subject matter, he might not have been particularly moderate, and he might not have been particularly conservative. And

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so, in those areas of the law, he still was defining the Court's doctrine, but not in a split-the-difference way. When he cared about a particular First Amendment issue, Citizens United, he was arguably the farthest right Justice in that case, and he determined what the Court did, not Chief Justice Roberts.

We could argue on issues like same-sex marriage, whether or not he was the furthest. But certainly, he was the one that made aggressive opinions in those areas possible, because he was the vote that the liberals on the Court were worried about losing. And so I think that makes him a particularly distinctive type of median Justice because he stands out when you look at the list of other people Lee identifies in terms of legacy, in terms of impact, on the shape of the court's doctrine.

And whether you like it or don't like it, whether you think his opinions are going to last or not last, that means this period is defined by Justice Kennedy in a way that no period on the Court when Justice White was there is defined by Justice White, in a way that I don't even think the '80s were defined by Justice O'Connor. That's a type of significance that you can't dismiss.

Professor Epstein: Just to reinforce Jonathan's point, if you look at the data, Kennedy is the only median to have been the median for an entire Chief Justice era. Nobody else can lay claim at least going back until 1937. That is a major distinction.

Professor Segall: It's late in the day, so I have a big question that I think is not data oriented, I don't think. I agree with everything you just said, Jonathan, which is a sentence I hate uttering, but I do, I agree with everything—

Professor Adler: I hope someone got that on tape.

Professor Segall: I agree with everything you just said. So, we lived in a country from 2005 to 2017 where one person really directed almost the entire gamut of litigated constitutional law questions. Shouldn't we maybe, and I think Lee's going to say that was an

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historical aberration, but shouldn't we maybe rethink this idea that one person can have that much power.

Professor Volokh: I don't know that there's anything inherently wrong with that. That is, whenever you have a bunch of decisions where you can put people on a spectrum and you have the single-peaked-ness assumption and so on, mathematically there's going to be a median, and whoever's the median will determine the rule...